Wall Street Tip-Off Law Critical to Drawing Out Corporate Whistleblowers

At one point in the 1999 movie “The Insider,” 60 Minutes producer Lowell Bergman (portrayed by Al Pacino) tells distraught Big Tobacco whistleblower Jeffrey Wigand, “Guys like you are in short supply.”

Bergmann’s right. Whistleblowers are in short supply because they rightfully fear retribution from their employers for speaking truth to power. In “The Insider,” Wigand (portrayed by Russell Crowe) watches as his family is threatened and his personal and professional reputation smeared when he blows the whistle on his former employer, the Brown & Williamson tobacco company.

However, a new law born of the Dodd-Frank Wall Street Reform and Consumer Protection Act will help incentivize and protect those like Wigand who risk coming forward with allegations and proof of corporate malfeasance.

I think the lawmakers behind the new law are on the right track. The law will help fight fraud, which played a pivotal role in the economic meltdown that millions of Americans are still trying to survive. Also, securities regulators are already stretched too thin to chase down all the bad guys. Giving Big Business insiders a monetary incentive to risk their careers and come forward with information about corporate wrongdoing will give investigators a powerful tool for rooting out transgressors.

The mechanics of the “Wall Street tip-off law”, as it’s come to be known in the press, are pretty simple: The law empowers the U.S. Securities and Exchange Commission to award between 10 percent and 30 percent of any monetary sanctions of more than $1 million to whistleblowers who provide information leading to a successful SEC enforcement.

Needless to say, substantial sums have already been awarded. According to an Aug. 8 Financial Times story, a woman named Karen Kaiser was awarded $1 million after she provided information that helped secure a $28 million settlement in an insider trading action the SEC brought against hedge fund giant Pequot Capital Management.

The new law, which has its foundation in Civil War era measures first put in place to combat military procurement fraud during the 1860s, already has its detractors – mostly attorneys of corporations that have to defend their clients and employers against accusations of wrongdoing.

Those skeptical of the Wall Street tip-off law have voiced concern that the SEC – already overwhelmed by vast amounts of data and information – will be forced to expend precious resources on investigations of allegations of securities fraud based on information coming from whistleblowers whose main motive is a piece of the settlement pie.

The argument is specious, at best.

First, as the law is set up now, no whistleblower is awarded a portion of any financial sanction unless the information provided leads to a successful SEC enforcement. Second, law enforcement has offered monetary rewards for information leading to the capture of suspects or the resolution of so-called “blue-collar” criminal cases for years. Why is it all right to offer monetary incentives for useful information in “blue-collar” cases, but not in “white-collar” cases?

What’s more, the Internal Revenue Service has had mechanisms similar to the Wall Street tip-off law in place since at least 2006. Shouldn’t the SEC – the agency charged with oversight of powerful Wall Street banks and financiers – have the same investigative tools at its disposal as the IRS?

Though some might question the motives of some whistleblowers, the critical role these individuals play in keeping powerful interests in America on the straight and narrow can be seen time and time again. Think Jeffrey Wigand and Big Tobacco. Or Sherron Watkins, whose testimony blew the lid off the shenanigans at Enron. Or Frank Serpico, the former New York Police Department detective whose testimony exposed widespread corruption among the city’s plain-clothes officers during the late 1960s and early 1970s.

The list goes on and on. In many cases, whistleblowers’ lives and livelihoods were threatened by their employers and colleagues. At the very least, they had to endure severe social and public ostracism. Take their bitter experiences into account and it soon becomes clear why a monetary incentive is needed for whistleblowers to come forward with useful information.

Americans are still licking their wounds from the latest round of illicit Wall Street activities. We at Hagens Berman believe the new Wall Street Tip-Off law is a step in the right direction that will help regulators crack down on securities fraud and accounting irregularities.

Interestingly, we worked very closely with Jeffrey Wigand. I, along with my partners, represented 13 states against Big Tobacco and worked closely with Jeffrey in making sure the eventual settlements protected him. Back then, whistleblower laws didn’t give him nearly the protection they do today. And Mr. Pacino was right – guys like Jeffrey are in short supply. They stick their neck out to try and do a societal good. With luck, these new protections will help convince others to do the same.